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DEFENCE LEGISLATION AMENDMENT ACT (No. 2) 1988 No. 104 of 1988 - SECT 18

DEFENCE LEGISLATION AMENDMENT ACT (No. 2) 1988 No. 104 of 1988 - SECT 18

18. After Part IXA of the Principal Act the following Part is inserted:
                           "PART IXB-SALVAGE CLAIMS
Interpretation

"117. (1) In this Part, unless the contrary intention appears:
'member of the crew', in relation to a Naval ship, means any member of the
Defence Force, whether an officer or a sailor, who belonged to, and was on
board, the ship at the time the salvage services were rendered and includes
any other member of the Defence Force who was on board the ship at that time
and who took part in the rendering of such services;
'Naval ship' means a ship belonging to the Australian Navy;
'officer' means an officer of the Australian Navy;
'salvage' includes all expenses properly incurred by a Naval ship in the
performance of salvage services;
'salvage services' means any act or activity undertaken to assist a vessel or
property in danger in whatever waters the act or activity takes place;
'vessel' means any ship, craft or structure capable of navigating the high
seas.

"(2) Where, before a claim for salvage in respect of salvage services rendered
by a Naval ship is commenced or settled, a person who was the commanding
officer of that ship at the time when the ship rendered salvage services:

   (a)  dies; or

   (b)  is absent from duty or from Australia or is, for any other reason,
        unable to act or continue to act on behalf of the members of the crew
        in accordance with subsection 117A (3); the Chief of Naval Staff
        shall, by instrument in writing, appoint a member of the crew of that
        ship to act on that person's behalf.

"(3) Where, before a claim for salvage in respect of salvage services rendered
by a Naval ship is commenced or settled, a person who was the commanding
officer of that ship at the time when the ship rendered salvage services:

   (a)  ceases (otherwise than by reason of death) to be the commanding
        officer of that ship; or

   (b)  ceases (otherwise than by reason of death) to be a member of the
        Australian Navy; that person shall, for the purposes of this Part, be
        taken to be the commanding officer of that ship until the claim for
        salvage is settled. Salvage claims by crew of Naval ships

"117A. (1) Without, by implication, affecting the right of the Commonwealth to
claim salvage in respect of salvage services rendered by a Naval ship, the
members of the crew of that ship may, subject to subsection (2), also claim
salvage in respect of those services.

"(2) A claim for salvage on behalf of the members of the crew of a Naval ship:

   (a)  shall not be made without the prior written approval of the Chief
        Naval Staff; and

   (b)  shall be commenced and prosecuted only by the Australian Government
        Solicitor.

"(3) Where the Chief of Naval Staff approves the making of a claim for salvage
in respect of salvage services rendered by a Naval ship on behalf of the
members of the crew of that ship, the commanding officer of that ship is
authorised, on behalf of each member of the crew of that ship:

   (a)  to instruct the Australian Government Solicitor to act for the members
        of the crew in relation to the claim; and

   (b)  to accept an offer in settlement of the claim.

"(3) An acceptance of an offer by the commanding officer is binding on each
member of the crew. Apportionment of salvage between the Commonwealth and crew
members

"117AA. (1) Where salvage is payable in respect of salvage services rendered
by a Naval ship and a part of that salvage has been claimed on behalf of the
members of the crew of that ship, the salvage so payable:

   (a)  shall be applied in meeting the expenses incurred by the Commonwealth
        in providing such salvage services; and

   (b)  to the extent that it is not so applied shall be apportioned between
        the Commonwealth and the members of the crew of the ship:

        (i)    if the apportionment between the Commonwealth and the members
               of the crew forms part of the terms of settlement between the
               owners of the vessel or property saved, the Commonwealth and
               the members of the crew-in accordance with those terms;

        (ii)   if a court or other tribunal has determined the apportionment
               between the Commonwealth and the members of the crew-in
               accordance with that determination; or

        (iii)  in any other case-on the basis that the Commonwealth shall be
               entitled to receive 80% of the salvage not so applied and the
               members of the crew shall be entitled to receive 20% of the
               amount of salvage not so applied.

"(2) Where an amount of salvage would, but for this subsection, be apportioned
between the Commonwealth and the members of the crew of a Naval ship in
accordance with subparagraph (1) (b) (iii), but the Minister is of the opinion
that the members of the crew have rendered exceptional services in the course
of rendering the salvage services concerned, the Minister may, by instrument
in writing, determine that the amount payable under that subparagraph to
members of the crew shall be increased to an amount not exceeding 25% of the
amount of salvage not applied in accordance with paragraph (1) (a) and the
amount payable to the Commonwealth shall be decreased accordingly.
Apportionment of salvage amongst crew members

"117AB. Where salvage payable in respect of salvage services rendered by a
Naval ship is, in accordance with section 117AA, to be apportioned between the
Commonwealth and the members of the crew of that ship, the amount of salvage
apportioned to the members of the crew:

   (a)  shall be applied in meeting the costs of the Commonwealth in
        conducting the salvage claim on behalf of the members of the crew; and

   (b)  to the extent that it is not so applied, shall be apportioned amongst
        the members of the crew in accordance with the regulations.".